Friday, August 23, 2013

While everyone was watching David Shearer's departure yesterday, the Employment Court handed down a landmark decision on equal pay. In a case between a caregiver and her employer, the Court had been asked to determine whether the effects of systematic discrimination could be taken into account in deciding whether pay was discriminatory. They concluded that it could:

Section 3 provides the mechanism by which the dual purposes of the Act are to be achieved. It must be interpreted consistently with those purposes. We struggle to see how the effects of gender discrimination on women’s rates of pay can be removed and prevented if a narrow interpretation of the provision is adopted. It would mean that any current, historic and/or structural gender discrimination entrenched within a particular female dominated industry would simply be perpetuated.

The fact that a man is employed to perform the same or similar role and is paid the same or similar rate of remuneration within the workplace or industry does not necessarily advance matters, and may reflect nothing more than receipt of an artificially depressed rate because he is performing what is colloquially (and pejoratively) known as “women’s work” (a phenomenon referred to by the 1971 Royal Commission of Inquiry into Equal Pay, referred to in greater detail below).

It would be illogical to use a small percentage of men as a comparator group if they are paid less because they are undertaking “women’s work.” Such an approach would distort the objective analysis required under s 3(1)(b) and fall well short of meeting the dual purposes of the Act. It would also be a simple matter to employ and then identify a self-defeating comparator (the token male), either
deliberately or for subconscious systemic reasons. This is something that has been firmly denounced, for obvious reasons.

Its a preliminary judgement, and it will undoubtedly be appealed. But if it survives the scrutiny of higher courts, then it is likely to mean some big changes - and hopefully a significant increase in pay for those working in female-dominated industries.